Jharkhand High Court
Unknown vs The State Of Jharkhand on 6 May, 2024
Author: Ananda Sen
Bench: Ananda Sen
Criminal Appeal (D.B.) No. 787 of 2018
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[arising out of Judgment of Conviction dated
23rd April, 2018 and Order of Sentence dated 27th
April, 2018 passed by the Additional Sessions
Judge XV, Dhanbad in Sessions Trial No.24 of
2013]
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Anil Mahto son of late Bhikhari Mahto, resident of Village
Nagarikala, PO PS Tetulmari, Chhotanagari, District Dhanbad.
... Appellant
-versus-
The State of Jharkhand ... Respondent
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For the Appellants : Mr. Anjani Kumar, Advocate
For the Respondent : Mr. Tarun Kumar, A.P.P.
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PRESENT: SRI ANANDA SEN, J.
SRI SUBHASH CHAND, J.
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JUDGMENT
Per Ananda Sen, J. The appellant has preferred this appeal against the
Judgment of Conviction dated 23rd April, 2018 and Order of Sentence dated
27th April, 2018 passed by the Additional Sessions Judge XV, Dhanbad in
Sessions Trial No.24 of 2013, whereby the appellant has been held guilty and
convicted for the offence punishable under Sections 304B of the Indian Penal
Code and he has been sentenced to undergo rigorous imprisonment for 10
years and a fine of Rs.5,000/- and in the event of non-payment of fine amount
to undergo further simple imprisonment for three months for the offence under
Section 304B of the Indian Penal Code.
2. Learned counsel for the appellant submits that there are no
materials to convict these appellant in this case. He submits that only because
the appellant is the husband, he has been convicted. It is his contention that
on the same set of evidence, father-in-law and mother-in-law of the deceased
have been acquitted, thus, this appellant also needs to be acquitted in this
case. He has also argued that there are no materials to suggests that any
dowry was demanded and there was torture. He submits that in absence of
any demand of dowry appellant could not have been convicted under Section
304B of the Indian Penal Code.
3. Learned A.P.P. for the State submits that it is the consistent case
of the prosecution, duly supported by the witnesses, that there was demand of
dowry and torture. Soon before death demand was made and deceased died
an unnatural death. He submits that the appellant has failed to discharge his
obligation in terms of Section 113B of the Evidence Act, thus, there is a
presumption of law that the appellant has committed dowry death. He prays
that this appeal needs to be dismissed.
4. We have heard the learned counsel for the appellant and the
learned A.P.P. for the State and have also gone through the records and the
entire evidence.
5. Prosecution case is based on the written report of the informant,
Hiralal Mahto, who is the brother of the deceased. As per the written report of
the informant, he had given marriage of his sister with the appellant on
12.06.2012. At the time of marriage he had given Rs.90,000/- in cash and a
gold chain, but after two months of marriage, in-laws demands motorcycle. For
not giving the motorcycle, they often used to assault his sister. He states that
on that day (today) at 08.30 a.m. in the morning he received information
through the villagers about murder of his sister. On reaching the matrimonial
house of the sister, he saw that his sister has been killed. There were also
marks of assault on her stomach. He came to know through the villagers that
the appellant, his brother Subhash Mahto, father-in-law of the deceased
Bhikhari Mahto, mother-in-law Alumani Devi and sister-in-law Yamuna Kumari
had killed his sister for dowry on 02.11.2012 at 06.00 p.m.
6. On the basis of the written report of the informant Katras
(Tetulmari) Police Station Case No.318 of 2012 was registered for offences
under Sections 304B/34 of the Indian Penal Code and Sections 3/4 of the
Dowry Prohibition Act. Police took up the investigation and on completion of
the investigation, filed chargesheet No.272 of 2012 on 26.12.2012 under
Sections 304B/34 of the Indian Penal Code. Cognizance of the offence was
taken and case was committed to the Court of Sessions. Charges against the
appellants were framed on 22.01.2013 for offences under Sections 304B/34 of
the Indian Penal Code, and alternatively under Sections 302/34 of the Indian
Penal Code and Sections 328/34 of the Indian Penal Code. Charges, so
framed, were read over and explained to the appellants, to which they pleaded
not guilty and claimed to be tried, thus the appellant was put on trial.
7. To bring home the charges, the prosecution examined altogether
9 witnesses, namely, P.W.1 Kishor Mahto, P.W.2 Hiralal Mahto (informant),
P.W.3 Basanti Devi, P.W.4 Jung Bahadur Mahto, P.W.5 Shankar Mahto,
P.W.6 Dr. Shailendra Kumar, P.W.7 Rajendra Prasad, P.W.8 Ramesh Mahto
and P.W.9 Sunil Kumar Mahto.
The prosecution also produced the following documentary
evidence, which were marked exhibits: -
Exhibit 1 Written Report
Exhibit 2 Postmortem Report
Exhibit 3 Inquest Report
Exhibit 1/1 Endorsement of case by the Officer-in-Charge Ram
Kumar Verma
Exhibit 1/2 Registration of case.
The defence did not examine any witness in support of their
defence.
8. P.W.1 Kishor Mahto was declared hostile.
P.W.2 Hiralal Mahto is the brother of the deceased and informant
in this case. He has stated that the deceased was his sister, whose marriage
was solemnized on 12.06.2012 with the appellant. At the time of marriage he
had given Rs.90,000/- in cash, one gold chain, Almirah and other household
articles. After 3-4 months of marriage, appellant and other accused started
demanding for a Hero Honda Motorcycle. He further stated that during Durga
Puja when the deceased had been to the house of this witness, the appellants
had assaulted her there also and after Durga Puja deceased had gone to her
in-law's house. On 02.11.2012 at about 06.00 p.m. he was informed by
someone through telephone from Nagrikala village that the deceased has
died. He stated that they went to the in-laws' house of the deceased on
03.11.2012 and saw marks of assault on the deadbody of the deceased. He
stated that he filed a case with Tetulmari Police Station. He proved the written
report which was marked as Exhibit 1. He identified all the accused persons.
In cross examination, he has stated that the marriage was
arranged. He stated that the deceased studied upto Inter (Class XII). He stated
that only once during Durga Puja deceased was assaulted. He stated that the
police had prepared the inquest report in his presence on 03.11.2012 in the
matrimonial home of the deceased. He denied that he has given false
statement hiding the truth and that no dowry was demanded.
P.W.3 Basanti Devi is the mother of the deceased. She has stated
that deceased was married in 2012 to Anil Mahto. Rs.90,000/- in cash, gold
chain, almirah and household articles were given at the time of marriage. After
marriage, the appellant started demanding one Hero Honda motorcycle. She
stated that during Durga Puja, appellant and sister-in-law of the deceased
along with the deceased had come to their home where the appellant asked
the deceased to demand a motorcycle from her and on being declined by her,
appellant had assaulted the deceased and took her to in-laws' home. She
stated that on 02.11.2012 the villagers informed that her daughter has died.
She stated that she along with her son (informant) and other villagers went to
the in-laws' place of the deceased. There they came to know that often there
used to be quarrel in the house of the appellant. She identified the accused.
In cross examination she stated that dowry was given as per the
negotiation and nothing was due. She stated that the deceased had told her
that the appellant is demanding for motorcycle. She stated that it is not correct
that she has given false evidence.
P.W.4 Jung Bahadur Mahto and P.W.5 Shankar Mahto were
declared hostile.
P.W.6 Dr. Shailendra Kumar is the doctor, who had conducted the
postmortem examination on the dead body of the deceased. He found the
following: -
(i) Lacerated wound about 3" long linear tier which was deep
muscle
(ii) Contusion over posterior vaginal wall
(iii)Blood was found coming out from the wounds. All these
injuries were caused by hard and blunt object. No other
antemortem wound was found anywhere on the person of the
deceased.
On Dissection: Stomach contained about 100 cc of grayish fluid
with strong smell of organo-phosphorous compound, i.e. an
insecticide having kerosene oil like smell. Similar smell was also
found in the lungs and internal organs. Uterus was normal and
non pregnant. Time elapsed since death was 18-24 hours.
Cause of Death : Death was due to toxic effect of organo-
phosphorous compound.
Postmortem report was marked as Exhibit 2.
P.W.7 is Rajendra Prasad, who was the investigating officer of the case.
He proved the registration note and forwarding over written report which were
marked as Exhibit 1/1 and Exhibit 1/2. He proved the Inquest Report, which
was marked as Exhibit 3. He stated that he had recorded the statement of the
informant and had visited the place of occurrence and has given description of
the place of occurrence. He has stated about the arrest of the accused
persons and receipt of postmortem report. He has also stated about recording
of the statement of witnesses, Basanti Devi, Ramesh Mahto, Sunil Mahto,
Kishor Mahto, Jang Bahadur Mahto and Shankar Mahto. He has stated that he
had submitted chargesheet against the accused persons under Sections
304B/34 of the Indian Penal Code.
P.W.8 Ramesh Mahto and P.W.9 Sunil Kumar Mahto were
declared hostile.
9. After closure of the evidence, appellant was examined under
Section 313 of the Code of Criminal Procedure, wherein he denied the
charges and claimed to be innocent.
10. The Trial Court, after hearing the arguments of the parties and
after going through the evidence, by a Judgment of Conviction dated 23rd April,
2018 and Order of Sentence dated 27th April, 2018 passed in Sessions Trial
No.24 of 2013, has held the appellants guilty, convicted them and sentenced
them for the offences as detailed in paragraph 1 hereinbefore.
11. Challenging the aforesaid conviction and sentence, the appellant
has preferred this appeal.
12. We have gone through the evidence and the entire records.
13. From the records, we find that the appellant has been charged
under Section 304B of the Indian Penal Code. Relationship between the
appellant and the deceased is of husband and wife. Section 304B of the Indian
Penal Code reads as under: -
"304B. Dowry death. - Where the death of a woman is caused by
any burns or bodily injury or occurs otherwise than under normal
circumstances within seven years of her marriage and it is shown
that soon before her death she was subject to cruelty or
harassment by her husband or any relative of her husband for, or
in connection with, any demand for dowry, such death shall be
called 'dowry death', and such husband or relative shall be
deemed to have caused her death.
Explanation.-For the purposes of this sub-section, 'dowry' shall
have the same meaning as in section 2 of the Dowry Prohibition
Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with
imprisonment for a term which shall not be less than seven years
but which may extend to imprisonment for life."
14. From the analysis of the aforesaid provision, it is clear that
ingredients to attract Section 304B of the Indian Penal Code are: -
(a) the death of a woman should be caused by any
burns or bodily injuries or occurs otherwise than
under normal circumstances
(b) within seven years of marriage
(c) soon before her death she was subject to cruelty
and harassment by the husband or by her in-laws
for or in connection with demand of dowry.
15. Once, all these ingredients are established by the prosecution, in
terms of Section 113B of the Evidence Act, there is a presumption that such
person has caused dowry death. The Court has no option but to presume that
the accused has caused dowry death unless the accused disproves it. The
presumption can only be rebutted. The accused can discharge their burden
either by eliciting answers from the side of the defence or by both, as held by
the Hon'ble Supreme Court in the case of Shamnsaheb M. Multtani versus
State of Karnataka reported in 2001 (2) SCC 577.
16. Considering the aforesaid judgment, if we evaluate the evidence
in the present case, we find that it is an admitted fact that the deceased was
married to the appellant on 12.06.2012, whereas the deceased died on
02.11.2012, i.e., less than 5 (five) months. The death is unnatural, which is
evident from the medical evidence as it is a case of poisoning. There were
also marks of injuries on the person of the deceased, which is evident from the
evidence of the doctor as narrated above.
17. P.W.2, who is the brother of the informant, has stated that after 3-
4 months of marriage, demand was made for motorcycle as dowry for which
deceased was being tortured. During Durga Puja also when the deceased had
come to her parental home, the appellant assaulted her. P.W.3, who is the
mother of the deceased, also stated that during Durga Puja, the husband and
nanad of the deceased forced her to put the demand of motorcycle from her
mother, when she expressed her inability, deceased was assaulted. This
clearly suggests that soon before death, there was torture and demand for
dowry, as the P.W.1 stated that after 3-4 months of marriage, this demand
started. If we compute this period, considering the date of marriage is
12.06.2012, it means that torture and the demand started sometime in the
month of September and October, whereas the deceased died on 2nd
November, 2012, thus, there is consistent evidence that soon before death
there was demand for dowry and torture.
18. Thus, in this case, we find that the three ingredients of Section
304B of the Indian Penal Code have been established by the prosecution in
their evidence. Thus, we hold that the prosecution has been able to prove the
basic ingredients of Section 304B of the Indian Penal Code and the legal
presumption that the appellant has caused dowry death is established.
19. Now, when the prosecution has been able to prove and establish
the basic ingredients of Section 304B of the Indian Penal Code, as per Section
113B of the Evidence Act, we have to presume that the death is a dowry death
caused by accused/appellant, until and unless the appellant disproves the
same.
20. When we go through the evidence of the parties, especially the
statement under Section 313 of the Code of Criminal Procedure, we do not
find any material to come to any conclusion that appellant has discharged his
duty. When the burden has shifted upon the accused, they were supposed to
discharge the same but they failed to discharge, as there is nothing in the
evidence which can come to the rescue of the appellant. Presumption under
Section 113B of the Evidence Act is presumption of law where the essentials
have to be proved by the prosecution. It is obligatory on their part to raise a
presumption that the accused has caused dowry death. In the instant case
presumption under Section 113B of the Evidence Act is attracted as the
prosecution has succeeded in proving the circumstances as contemplated in
Section 304B of the Indian Penal Code. In absence of any material which
disproves or rebuts the aforesaid presumption, we must draw inference that
this appellant has committed the offence of dowry death.
21. Considering what has been held above, since the appellant has
failed to discharge his duty whereas the prosecution has established the
conditions necessary to prove the dowry death under Section 304B of the
Indian Penal Code, we have no other option but to dismiss the appeal.
22. Accordingly, the Judgment of Conviction dated 23rd April, 2018
and Order of Sentence dated 27th April, 2018 passed by the Additional
Sessions Judge XV, Dhanbad in Sessions Trial No.24 of 2013, do not warrant
any interference by this Court and, hence, it is affirmed.
23. Let the Trial Court Records be transmitted to the Court concerned
along with a copy of this judgment.
(Ananda Sen, J.)
(Subhash Chand, J.)
High Court of Jharkhand, Ranchi
Dated, the 06th May, 2024
Kumar/Cp-03
